Employers across the country are figuring out how to bring workers back to the office safely. But those plans shouldn’t only consider COVID-19. Instead, employers should take this moment to address another safety issue that certainly hasn’t disappeared, despite the pandemic: workplace sexual harassment.
Before an office can truly reopen safely, companies must take a critical look at their policies and culture around sexual harassment. Here are three ways to get started.
After a year of disruption and isolation, many employees will be due for an annual anti-harassment training. But the truth is that most of these trainings are absolute garbage. They’re stiff and corporate, meant to protect employers from liability rather than actually improve workplace culture.
The examples are ridiculous. The rules are overly restrictive. I’m a sexual harassment lawyer, and I was ready to abolish all sexual harassment laws after I sat through a mandatory training in 2019.
What a lost opportunity. Good trainings can make a real difference. First and foremost, employees need to know what constitutes sexual harassment. Most adults, I’d wager, can recognize the most obvious forms; a presentation doesn’t need to belabor the point that a manager cannot offer a raise in return for sex.
But many workers don’t recognize more subtle harassment, such as ambient “locker-room talk” that can create a hostile environment even if it doesn’t target a particular employee. They might think of sexual assault as only a criminal offense, rather than a particular form of sexual harassment that employers must address. A good training will provide a range of examples so employees grasp the full spectrum of harassment.
Workers also need to understand what comes next. A presentation should lay out victims’ options, including to whom they can report, what kind of investigation procedure that report will trigger, and what practical support HR can provide. A good training will also include information about workers’ legal rights and the agencies to whom they can complain if they are mistreated.
Here’s the hardest part: For a healthy, equitable workplace culture, employees need to learn to attune themselves to subtle power dynamics. A supervisor needs to understand, for example, why their subordinate might laugh along at their sexualized jokes even though they make the subordinate uncomfortable.
Meaningful anti-harassment training, then, can’t be distilled entirely into a series of acontextual prophylactic rules. At their best, trainings achieve something rather profound: helping workers recognize each other’s full humanity and the constraints and pressures that all of us face in the workplace, so that we can exercise good judgment as situations arise.
That kind of education will necessarily be interactive: Think more discussion, less PowerPoint. It needs to be repeated, rather than a one-time webinar during onboarding. And it requires feminist trainers committed to actually stopping sexual harassment, not just protecting corporations from lawsuits.
Establish fair and trustworthy investigation procedures
When workers report sexual harassment, employers will often need to investigate to figure out what, exactly, happened. As I explain in my new book, Sexual Justice, an office policy that ensures a fair, impartial investigation is important for both victims and the accused. A fair process promotes truth-seeking, roots out bias, and is easier for ordinary people to navigate. Fairness also imbues an investigation with legitimacy, which ensures community buy-in and encourages victims to come forward.
Of course, a fair workplace investigation won’t look like a full criminal trial. Employers don’t have the same resources as the police, and the consequences of an HR complaint will never be so severe as incarceration. But even small employers can provide the basics of due process: notice of the allegation to the accused and an opportunity for everyone to tell their side of the story. Both the complainant and the accused should have the chance to provide evidence.
Not every workplace needs to put on a full hearing, but each side should have the chance to hear the other’s account and suggest questions an investigator should ask. The decision makers should be impartial. If that’s not possible in-house—because, for example, the accused is the CEO—a company should consider bringing in an external investigator. Both parties should receive an explanation of the final decision. A larger workplace with more resources might offer a method for either side to appeal. At every step, both the complainant and accused should have equal rights.
These are flexible principles. The particular form a fair process takes will depend on a number of factors and vary among different kinds of workplaces. An allegation that might result in termination will require a more extensive investigation than one that will not.
Address all forms of harassment
American workplaces are rife with sexual harassment. But workers face other kinds of harassment, too—on the basis of their race, sexual orientation, disability, and more. A good workplace harassment policy will address all these forms of harassment.
And, importantly, harassment policies should be set up to address harassment based on the specific intersections of workers’ identities. For example, Black women often face harassment based on the centuries-old stereotype, harking back to slavery, that they are hypersexual. If employers treat such harassment as “just sexual” or “just racist,” they will fail to understand employees’ experiences and design remedies that can build a better workplace culture.
Process comes into play here as well. Some workplaces have one set procedure for handling reports of sexual harassment, and then another procedure for handling all other kinds of workplace misconduct. So what happens when a worker experiences racialized sexual harassment? Should their complaint be treated as one only of sexual harassment, ignoring the racism intertwined? Should the employer conduct two parallel investigations into different “parts” of the harassment?
Such a piecemeal approach will inevitably fail to comprehend the full pattern of abuse and its ramifications. One relatively simple fix is to design a single office policy to address all kinds of interpersonal misconduct. There’s no reason to single out sexual harassment for different procedures, and that siloing does a disservice to victims and the broader office culture.
All workplaces should regularly take the time to review their policies and culture regarding sexual harassment. But this moment presents a unique opportunity, as so many employers spend time and resources designing plans to return to the office. They need to make sure their workers are returning to an environment that is not only free of COVID-19, but harassment as well.
Alexandra Brodsky is a civil rights attorney and the author of Sexual Justice: Protecting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, which will be published on Aug. 24.
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